Last edited Sat Nov 28, 2020, 06:46 AM - Edit history (1)
The opinion, and every single justice who separately concurred in it, signaled - in no uncertain terms - that religious entities/events are not exempt from generally applicable restrictions enacted to prevent the spead of COVID 19.
What 7 of the 9 justices said was that, if the question was before them, orders that expressly target religious events for harsher restrictions than secular events would almost certainly be found unconstitutional. That's Con Law 101. It is not a hard question - and it is a matter of protecting religious freedom. Even the two justices who didn't agree as to that likely outcome disagreed because they believe the rules favor religious events (which also creates a first amendment issue, should secular entities choose to raise it).
But the BIG thing that everyone seems to miss is in the first paragraph of Justice Kavanaugh's concurrence:
Importantly, the Court’s orders today are not final decisions on the merits. Instead, the Court simply grants temporary injunctive relief until the Court of Appeals in December, and then this Court as appropriate, can more fully consider the merits.
I agree with the dissent that the court should have restrained itself, and not issued an injunction. But I agree with 7 of the 9 justices who suggested that Cuomo needs to go back to the drawing board and write rules that target risky behavior, not religious events. If the rules restrict risky behavior (regardless of who engages in it), those rules will be as enforceable against religious entities/events as they are against secular entities/events.
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